Introduction
Section 342 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the procedure to be followed when a corporation or a registered society is made an accused in a criminal inquiry or trial.
Since a corporation is an artificial legal person and cannot physically appear before a Court in the same manner as an individual, the provision allows it to appoint a representative for the purpose of the inquiry or trial. It also explains how requirements relating to the presence and examination of the accused are to be applied when such a representative appears.
Section 342 substantially corresponds to Section 305 of the Code of Criminal Procedure, 1973.
Meaning of Section 342
Section 342 provides a procedural mechanism for the representation of a corporation in criminal proceedings.
Where a corporation is an accused person, it may appoint a representative to appear on its behalf. The representative performs, for the purposes specified by the section, the functions that would ordinarily be performed by an individual accused.
The provision also applies to a society registered under the Societies Registration Act, 1860, because such a society is included within the meaning of corporation under the section.
Statutory Provision
Section 342(1) – Meaning of Corporation
For the purposes of Section 342, corporation means an incorporated company or other body corporate.
The definition also includes a society registered under the Societies Registration Act, 1860.
Therefore, the provision covers:
- incorporated companies;
- other body corporates; and
- registered societies covered by the statutory definition.
Section 342(2) – Appointment of Representative
Where a corporation is the accused person or one of the accused persons in an inquiry or trial, it may appoint a representative for the purpose of the inquiry or trial.
The appointment does not need to be made under the seal of the corporation.
This makes the process of appointing a representative procedurally simpler.
Section 342(3) – Functions of Representative
Where the representative of a corporation appears before the Court, certain requirements relating to the accused are treated as requirements relating to the representative.
Therefore:
- anything required to be done in the presence of the accused may be done in the presence of the representative;
- anything required to be read, stated or explained to the accused may be read, stated or explained to the representative; and
- where the accused is required to be examined, the representative is to be examined.
The representative therefore acts as the procedural representative of the corporation for the purposes specified in the provision.
Section 342(4) – Where Representative Does Not Appear
Where the representative of the corporation does not appear, the requirements referred to in sub-section (3) do not apply.
This prevents the proceedings from being indefinitely dependent upon the physical appearance of the corporation’s representative.
Section 342(5) – Presumption Regarding Appointment
Section 342(5) provides an important mechanism concerning the appointment of a representative.
Where a written statement is filed stating that a particular person has been appointed as the representative of the corporation for the purposes of Section 342, the Court shall presume that the person has been so appointed unless the contrary is proved.
The statement must purport to be signed by:
- the managing director of the corporation; or
- a person duly authorised by the managing director,
who has, or is one of the persons having, the management of the affairs of the corporation.
Thus, the written statement creates a statutory presumption regarding the authority of the representative.
Section 342(6) – Dispute Regarding Representative
A question may arise as to whether a person appearing before the Court is actually the authorised representative of the corporation.
Section 342(6) provides that such a question shall be determined by the Court.
Therefore, the Court has the authority to determine whether the person appearing on behalf of the corporation is its representative for the purposes of the inquiry or trial.
Essential Features
1. Corporation Can Be an Accused
A corporation can be made an accused in a criminal proceeding.
Section 342 provides the procedural mechanism for dealing with such a situation.
2. Representative May Be Appointed
The corporation may appoint a representative to appear on its behalf.
The appointment need not be under the seal of the corporation.
3. Representative Takes the Procedural Place of the Corporation
Where the representative appears, requirements concerning the presence, reading, explanation and examination of the accused are applied to the representative.
4. Written Statement Creates a Presumption
A properly filed written statement concerning the appointment of the representative is presumed to establish the appointment unless the contrary is proved.
5. Court Determines Disputes
If there is a dispute regarding whether a person is the authorised representative, the Court decides the question.
Procedure Under Section 342
The operation of the provision can be understood as follows:
- A corporation or registered society is made an accused in an inquiry or trial.
- The corporation may appoint a representative.
- The appointment does not require the corporation’s seal.
- The representative appears before the Court.
- Procedural requirements concerning the presence or examination of the accused are applied to the representative.
- A written statement regarding the appointment may be filed before the Court.
- Unless the contrary is proved, the Court presumes the appointment stated in that document.
- If a dispute arises regarding the representative’s status, the Court determines the issue.
Importance of the Provision
A corporation is a legal entity and cannot physically appear before a Court in the manner in which an individual accused can appear.
Section 342 therefore solves a practical procedural problem by allowing the corporation to participate through an authorised human representative.
The provision also ensures that procedural requirements applicable to an accused can be meaningfully applied where the accused is an artificial legal person.
Example
Suppose XYZ Private Limited is prosecuted for an offence and is made one of the accused persons in a criminal trial.
XYZ Private Limited may appoint its authorised representative to appear before the Court.
If the Court is required to explain something to the accused, that requirement may be fulfilled by explaining it to the representative.
If the accused is required to be examined, the representative is examined for the purposes of the provision.
If a written statement signed by the managing director or an appropriately authorised person is filed stating that A has been appointed as the company’s representative, the Court will presume that A has been appointed unless the contrary is proved.
Important Distinction
Corporation and Individual Accused
An individual accused can personally appear before the Court.
A corporation, being an artificial legal person, acts through a representative. Section 342 provides the mechanism for that representation.
Representative and Personal Liability
The representative appears on behalf of the corporation. The mere fact that a person acts as the representative does not mean that the representative personally becomes the accused in place of the corporation.
The criminal liability of the corporation and any individual liability of its officers are separate questions governed by the substantive law and the facts of the case.
Object and Purpose
The main objectives of Section 342 are:
- to provide a practical procedure for prosecuting corporations;
- to allow corporations to participate in criminal proceedings through representatives;
- to avoid requiring the physical presence of an artificial legal person;
- to simplify proof of the representative’s authority;
- to ensure that procedural requirements concerning an accused can operate in corporate prosecutions; and
- to give the Court authority to resolve disputes concerning the representative.
BNSS and CrPC
Section 342 BNSS substantially corresponds to Section 305 of the Code of Criminal Procedure, 1973.
The basic mechanism has been carried forward under the BNSS, including:
- the definition of corporation;
- appointment of a representative;
- treatment of the representative as the accused for specified procedural requirements;
- the consequence of non-appearance;
- presumption regarding appointment; and
- determination by the Court of disputes regarding the representative.
Relationship with BNS and BSA
Section 342 is a procedural provision under the BNSS.
The Bharatiya Nyaya Sanhita, 2023 (BNS) deals with substantive criminal offences, while the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the law of evidence.
Section 342 specifically regulates how a corporation or registered society participates in criminal inquiry and trial.
Topic at a Glance
- Section: 342, BNSS, 2023
- Subject: Procedure when corporation or registered society is an accused
- Corporation includes: Incorporated company, other body corporate and registered society covered by the section
- Representative: May be appointed by the corporation
- Seal: Appointment need not be under the corporation’s seal
- Presence: Representative may satisfy requirements concerning the presence of the accused
- Explanation: Matters required to be read, stated or explained to the accused may be dealt with through the representative
- Examination: Requirement to examine the accused is construed as a requirement to examine the representative
- Non-appearance: Requirements referred to in sub-section (3) do not apply
- Presumption: Written statement regarding appointment is presumed correct unless the contrary is proved
- Dispute: Court determines whether a person is the representative
- Corresponding CrPC provision: Section 305, CrPC
Quick Revision
- Section 342 BNSS deals with criminal proceedings where a corporation or registered society is an accused.
- A corporation includes an incorporated company or other body corporate and includes a registered society under the Societies Registration Act, 1860.
- The corporation may appoint a representative for the inquiry or trial.
- The appointment need not be under the seal of the corporation.
- When the representative appears, requirements concerning the presence, reading, explanation and examination of the accused apply to the representative.
- If the representative does not appear, the requirements mentioned in sub-section (3) do not apply.
- A written statement concerning the appointment of the representative creates a presumption of valid appointment unless the contrary is proved.
- The Court decides any dispute regarding whether a person is the authorised representative.
- Section 342 substantially corresponds to Section 305 of the CrPC.
ALSO READ: Section 341 – Legal aid to accused at State expense in certain cases
Conclusion
Section 342 BNSS provides a practical framework for dealing with corporations and registered societies as accused persons in criminal proceedings. By allowing a corporation to appoint a representative and by treating that representative as the relevant procedural substitute for the corporation, the provision enables criminal inquiries and trials to proceed effectively against artificial legal persons while maintaining judicial control over representation.
